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Overturning Windsor?

After DOMA, What?

by CHARLES PIERSON

Wednesday, the United States Supreme Court decided two cases on same sex marriage.  United States v. Windsor struck down section 3 of the federal Defense of Marriage Act (DOMA) which limits the word “marriage” for federal purposes to one man and one woman.

After Windsor there will be sweeping changes in how federal law treats gay couples.  Under DOMA, gay married couples were excluded from a myriad of benefits federal law allows straight couples.

“Marriage” is embedded in so many laws it is practically invisible.  The Government Accountability Office lists no fewer than 1100 legal disadvantages gays have suffered by not having their marriages legally recognized—and that’s under federal law alone.[1]  (State law piles on further disadvantages.)  Here are just a few of the disadvantages gay couples faced under federal law thanks to DOMA’s exclusionary definition of marriage:

* Straight couples can take advantage of the Estate Tax Marital Deduction which currently allows all of the deceased spouse’s assets to pass to the surviving partner free of federal tax.  Gay couples do not qualify for the Martial Deduction, not even if they were married in a jurisdiction which allows same sex marriage, as were the lesbian couple in U.S. v. Windsor.  This meant the surviving spouse in Windsor had to pay $363,053.00 which she would not have had to pay if her spouse had been a man.  Now she gets that money back.

* A gay couple could not file a joint tax return.  Now they can.

* A surviving gay spouse was not entitled to receive Social Security survivor’s benefits.

* A hetero spouse has been able to claim Social Security disability benefits based on their spouse’s accumulated Social Security benefits so long as they were married for ten years.  This is a great advantage for a stay-at-home spouse who may not have accumulated as much in the way of Social Security benefits as their working partner.  This option was foreclosed to gay married couples.

Hollingsworth challenged California’s Proposition 8, a state referendum which overturned the California Supreme Court’s decision upholding same sex marriage.  Lower federal courts had held Prop 8 unconstitutional.  The U.S. Supreme Court Wednesday agreed with the lower courts on procedural grounds:  petitioners lacked standing to challenge the holdings of the lower federal courts striking down Prop 8.  Hollingsworth ends marriage discrimination in California.

Wednesday’s decisions, however, did not establish a fundamental right to marry nationwide.  Court-watchers had seen this as a long-shot possibility in Hollingsworth.  The fly in the ointment is Section 2 of DOMA which was not challenged in either case.  (Windsor had only struck down Section 3.)  Section 2 allows states to refuse recognition to same sex marriages entered into in states where they are legal.  Since Section 2 was not challenged, it remains the case that a couple who marry in one of the 11 states where same sex marriage is legal, and then move to a state which forbids gay marriage, will not have their marriage recognized in their new home.

This means that gay couples will continue to be denied many rights straight couples take for granted.  Here are just a few:

*Most employers do not provide health insurance which covers a gay employee’s partner.

* Unless they have executed a Durable Power of Attorney for Healthcare, one gay spouse will be barred from making sensitive medical decisions for a partner too incapacitated to do so.

*Gay people can be barred from their ill partner’s hospital bedside because they are not “family.”

* What if one spouse dies without making a will?  The surviving spouse in a hetero marriage is automatically protected and receives the entire estate.  And gay couples?  In most states, the surviving partner won’t get a dime.

*Straight spouses can not be forced to testify against each other in court proceedings.  Gay spouses…well, you get the idea.

Now consider gay couples who adopt.  A major argument conservatives make against gay marriage is that gay marriage will harm children.  Daily I expect to see a bumper sticker declaring:  “MARRIAGE FOR DYKES HURTS TYKES.”  This is nonsense.  I have gay friends who have adopted children and they are exemplary parents.  None of their kids has grown up to be a spree killer or a Republican.

The truth is that kids are hurt when gays can’t marry.  Children of gay couples are buffeted with a myriad of legal disadvantages.  Bill Keller gives an overview in an outstanding op-ed in the New York Times (“About the Children,” Apr. 8, 2013).

Keller points out that many states deny second-parent adoption in the case of gay couples.  The ramifications of this are many.  If a child is sick, the non-adopting parent can be banned from the child’s hospital bedside.  (Even where there is a valid second-parent adoption, one of the parents may be shut out.  This happened to friends in West Virginia where a hospital could not get its mind around the idea of a child with two fathers.)  And only the adopting parent’s health insurance will cover their child.  If the couple breaks up, one partner may be denied visitation rights.  If the non-adopting partner dies, the children will not receive Social Security survivor’s benefits from that parent—or veteran’s survivor benefits if that parent was a veteran.

Much work remains to be done to advance marriage equality.  Talk has already begun about a constitutional amendment to overturn Windsor.  On the positive side, legislation has been introduced in Congress (the Respect for Marriage Act) which will repeal the rest of DOMA.  Wednesday’s decisions are an encouraging start.[2]

Charles Pierson can be reached at: chapierson@yahoo.com.

Notes.

[1]  See U.S. GOVERNMENT ACCOUNTABILITY OFFICE, “Defense of Marriage Act,” available at http://www.gao.gov/products/OGC-97-16 (Jan. 31, 1997) and “Defense of Marriage Act:  Update to Prior Report,” available at http://www.gao.gov/products/GAO-04-353R (Jan. 23, 2004).

[2]  Most of the opposition to gay marriage comes from conservatives.  However, I don’t want to close without two slams against Democrats’ cowardice.  The first is against President Bill Clinton for signing DOMA.  DOMA probably would have passed over Clinton’s veto, but Clinton would have been taking a stand.  Second, President Barack Obama and the Democratic-controlled Congress of 2009 had the power to repeal DOMA on Obama’s first day in office.  Instead, Windsor‘s challenge to DOMA has been struck down seventeen years after its enactment.